The Law Society of Upper Canada Tribunal Hearing division has imposed a one month suspension of an attorney

 Spouses, friends, and business partners often come to lawyers with common goals, and have one person speak on their behalf. This case is a reminder that it is essential to obtain instructions from each independently and to advise them about the nature of joint retainers and possible conflicts of interest. A lawyer must never treat a group of individual clients as a unit. The discipline Stan Thomas is now receiving results, first, from his failing to follow the clear guidance in the Rules of Professional Conduct about what to do when taking on a joint retainer. Second, it results from his taking instructions from one of his two clients without consulting the other when it turned out the relationship between them was breaking down. He therefore failed to serve one of the two clients and preferred the interests of one over the other.

The misconduct

Mr. Thomas had a continuing client relationship and friendship with RD. In 2008 and 2009, he acted for RD and another individual jointly (in one case JE, in the other JD) on two mortgage transactions where they were joint lenders. In neither case did he give the advice required by Rule 2.04(6) in cases of joint retainers.

The complainant, JE, one of the individuals who retained Mr. Thomas together with RD, was a friend of RD but did not know Mr. Thomas. Mr. Thomas did not ask RD and the complainant to sign a joint retainer, although he believes he did advise them, inadequately, about the risks of a joint retainer. Mr. Thomas did not specifically tell the complainant of his ongoing relationship with RD nor recommend that he seek independent legal advice as required by the Rules.

When the property owners had financial difficulty in 2011, they entered into a creditor proposal that included transferring the property into RD’s name, in trust for the mortgagees, with the complainant remaining as a first mortgagee. The complainant was in Florida at the time and Mr. Thomas did not contact or try to get instructions from the complainant.

When he transferred the property without instructions from the complainant, Mr. Thomas did not serve the complainant to the standards of a competent lawyer. He also preferred the interests of RD to those of the complainant by not getting his consent.